2000 Legislation
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SENATE BILL NO. 1408, As Amended – Rights-of-way, encroachments

SENATE BILL NO. 1408, As Amended

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Daily Data Tracking History



S1408aa...................................................by TRANSPORTATION
RIGHTS-OF-WAY - Amends and repeals existing law to revise the definition of
a "public right-of-way"; to provide that gates are encroachments; to
increase the penalty for unlawful encroachments on public rights-of-way;
and to delete provisions which describe when gates are allowed and when
they are not allowed.
                                                                        
02/11    Senate intro - 1st rdg - to printing
02/14    Rpt prt - to Transp
03/10    Rpt out - to 14th Ord
03/15    Rpt out amen - to engros
03/16    Rpt engros - 1st rdg - to 2nd rdg as amen
03/17    2nd rdg - to 3rd rdg as amen
03/21    3rd rdg as amen - PASSED - 30-0-5
      AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
      Crow, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Hawkins,
      Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Parry, Riggs, Risch,
      Sandy, Schroeder, Sorensen, Stennett, Thorne, Wheeler, Whitworth,
      Williams
      NAYS--None
      Absent and excused--Geddes, Ingram, Noh, Richardson, Stegner
    Floor Sponsor - Whitworth
    Title apvd - to House
03/22    House intro - 1st rdg as amen - to Transp
03/29    Rpt out - rec d/p - to 2nd rdg as amen
04/03    3rd rdg as amen - PASSED - 64-0-6
      AYES -- Alltus, Barraclough(Barraclough), Barrett, Bell, Bieter,
      Black, Boe, Bruneel, Callister, Campbell, Chase, Cheirrett, Crow,
      Cuddy, Deal, Denney, Field(13), Field(20), Gagner, Geddes, Gould,
      Hadley, Hammond, Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet,
      Jones, Judd, Kellogg, Kempton, Kendell, Kunz, Lake,
      Loertscher(Loertscher), Mader, Marley, McKague, Meyer, Montgomery,
      Moss, Moyle, Pearce, Pischner, Pomeroy, Reynolds, Ridinger, Ringo,
      Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson,
      Stoicheff, Stone, Taylor, Tilman, Trail, Wood, Zimmermann
      NAYS -- None
      Absent and excused -- Clark, Ellsworth, Linford, Mortensen, Wheeler,
      Mr Speaker
    Floor Sponsor - Cuddy
    Title apvd - to Senate
04/04    To enrol - rpt enrol - Pres signed
04/05    Sp signed
04/06    To Governor
04/12    Governor signed
         Session Law Chapter 252
         Effective: 04/12/00

Bill Text


 S1408
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                              SENATE BILL NO. 1408, As Amended
                                                                        
                                BY TRANSPORTATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO PUBLIC RIGHTS-OF-WAY; AMENDING  SECTION  40-117,  IDAHO  CODE,  TO
  3        REVISE  THE DEFINITION OF "PUBLIC RIGHT-OF-WAY"; AMENDING SECTION 40-2319,
  4        IDAHO CODE, TO PROVIDE THAT GATES ARE ENCROACHMENTS, TO INCREASE THE  PEN-
  5        ALTY  FOR  UNLAWFUL  ENCROACHMENTS,  TO PROVIDE PROPER NOMENCLATURE AND TO
  6        MAKE A TECHNICAL CORRECTION; REPEALING SECTION 40-2320,  IDAHO  CODE;  AND
  7        DECLARING AN EMERGENCY.
                                                                        
  8    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  9        SECTION  1.  That  Section  40-117, Idaho Code, be, and the same is hereby
 10    amended to read as follows:
                                                                        
 11        40-117.  DEFINITIONS -- P.
 12        (1)  "Person" includes every natural person, firm,  fiduciary,  copartner-
 13    ship,  association, corporation, trustee, receiver or assignee for the benefit
 14    of creditors.
 15        (2)  "Place." (See "Maintain," section 40-114, Idaho Code)
 16        (3)  "Primary system" or "primary highway" means any portion of the  high-
 17    ways  of the state, as officially designated, or as may hereafter be so desig-
 18    nated, by the Idaho transportation board, and approved  by  the  secretary  of
 19    transportation,   pursuant   to   the  provisions  of  title  23,  U.S.  Code,
 20    "Highways.".
 21        (4)  "Public highway agency" means the  state  transportation  department,
 22    any city, county, highway district or other political subdivision of the state
 23    with jurisdiction over public highway systems and public rights-of-way.
 24        (5)  "Public highways" means all highways open to public use in the state,
 25    whether  maintained  by the state or by any county, highway district, city, or
 26    other political subdivision. (Also see "Highways," section 40-109, Idaho Code)
 27        (6)  "Public right-of-way" means a right-of-way open  to  the  public  and
 28    under  the  jurisdiction  of a public highway agency, where the public highway
 29    agency has no obligation to construct or maintain, but may  expend  funds  for
 30    the maintenance of, said public right-of-way or post traffic signs for vehicu-
 31    lar  traffic  on  said public right-of-way. In addition, a public right-of-way
 32    includes a right-of-way which was originally intended  for  development  as  a
 33    highway and was accepted on behalf of the public by deed of purchase, fee sim-
 34    ple  title, authorized easement, eminent domain, by plat, prescriptive use, or
 35    abandonment of a highway pursuant to section 40-203, Idaho Code, but shall not
 36    include federal land rights-of-way, as  provided  in  section  40-204A,  Idaho
 37    Code,  that  resulted  from the creation of a facility for the transmission of
 38    water. Public rights-of-way shall not be considered improved highways for  the
 39    apportionment of funds from the highway distribution account.
                                                                        
 40        SECTION  2.  That  Section 40-2319, Idaho Code, be, and the same is hereby
 41    amended to read as follows:
                                                                        
                                           2
                                                                        
  1        40-2319.  ENCROACHMENTS -- REMOVAL -- NOTICE --  PENALTY  FOR  FAILURE  TO
  2    REMOVE -- REMOVAL BY DIRECTOR OF HIGHWAYS COUNTY OR HIGHWAY DISTRICT -- ABATE-
  3    MENT.  (1) If any highway laid out or erected or public right-of-way under the
  4    jurisdiction of a county or highway district  is  encroached  upon  by  gates,
  5    fences,  buildings, or otherwise, the director  of highways of the appropriate
  6    county or highway district may, orally or in writing, require the encroachment
  7    to be removed. from the highway. If the encroachment is  of  a  nature  as  to
  8    effectually obstruct and prevent the use of the highway or public right-of-way
  9    for  vehicles,  the  county  or  highway  district shall immediately cause the
 10    encroachment to be removed.
 11        (2)  Notice shall be given to the occupant or owner of the land, or person
 12    causing or owning the encroachment, or left at his place of  residence  if  he
 13    resides  in the county highway jurisdiction. If not, it shall be posted on the
 14    encroachment, specifying the breadth of the highway, the place and  extent  of
 15    the encroachment, and requiring him to remove the encroachment within ten (10)
 16    days.
 17        (3)  If the encroachment is not removed, or commenced to be removed, prior
 18    to the expiration of ten (10) days from the service or posting the notice, the
 19    person  who  caused, owns or controls the encroachment shall forfeit up to one
 20    hundred fifty dollars  ($150.00)  for  each  day  the  encroachment  continues
 21    unmoved.  If  the  encroachment  is of a nature as to effectually obstruct and
 22    prevent the use of the highway for vehicles, the director  of  highways  shall
 23    immediately remove the encroachment unremoved.
 24        (4)  If  the  encroachment  is  denied, and the owner, occupant, or person
 25    controlling the encroachment, refuses either to remove it  or  to  permit  its
 26    removal, the director of highways county or highway district shall commence in
 27    the  proper  court  an  action to abate the encroachment as a nuisance. If the
 28    director of highways county or highway district recovers judgment, he it  may,
 29    in addition to having the encroachment abated, recover up to one hundred fifty
 30    dollars ($150.00) for every day the nuisance remained after notice, as well as
 31    costs of the legal action and removal.
 32        (5)  If the encroachment is not denied, but is not removed for within five
 33    (5)  days  after  the  notice  is complete, the director of highways county or
 34    highway district may remove it at the expense of the owner, occupant, or  per-
 35    son  controlling  the  encroachment,  and  the  county or highway district may
 36    recover his costs and expenses, as well as the sum of up to one hundred  fifty
 37    dollars ($150.00) for each day the encroachment remained after notice was com-
 38    plete.
                                                                        
 39        SECTION  3.  That  Section 40-2320, Idaho Code, be, and the same is hereby
 40    repealed.
                                                                        
 41        SECTION 4.  An emergency existing  therefor,  which  emergency  is  hereby
 42    declared to exist, this act shall be in full force and effect on and after its
 43    passage and approval.

Amendment


 AS1408
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                                                     Moved by    Boatright           
                                                                        
                                                     Seconded by Whitworth           
                                                                        
                                       IN THE SENATE
                             SENATE AMENDMENTS TO S.B. NO. 1408
                                                                        
                                                                        
  1                               AMENDMENTS TO SECTION 1
  2        On page 1 of the printed bill, in line 28, delete "exclusive"; and in line
  3    36, following "rights-of-way" insert: ", as provided in section 40-204A, Idaho
  4    Code,".
                                                                        
  5                               AMENDMENTS TO SECTION 2
  6        On page 2, in line 19, delete "seven hun-" and in line 20,  delete  "dred"
  7    and  insert:  "up to one hundred"; and also in line 20, delete "7" and insert:
  8    "1"; in line 29, delete "seven" and insert: "up to one"; in  line  30,  delete
  9    "7"  and  insert: "1"; in line 36, delete "seven" and insert: "up to one"; and
 10    in line 37, delete "7" and insert: "1".
                                                                        
 11                                 CORRECTION TO TITLE
 12        On page 1, in line 4, delete "FINE" and insert: "PENALTY".

Statement of Purpose / Fiscal Impact


                 STATEMENT OF PURPOSE
                       RS09908 
     
          The purpose of this legislation is to implement recommendation of 
     the Report to the Senate Transportation Committee and the House Transportation and
     Defense Committee, submitted by the Local Highway Technical Assistance Council in
     response to Senate concurrent Resolution - 136, passed in 1998. 
          Amendment of 40-117 (6) to properly add hyphens to denote the rights-of-way
     refers to property and not a traffic rule. This amendment clarifies that there is no
     obligation for posting traffic signs on public rights-of-way (including Federal lands
     rights-of-way). It further specifies that public highway 
     agencies may expend funding on public rights-of-way and that public rights-of-way shall
     not be considered improved highways for apportionment of funds from the Highway
     Distribution Account. 
          Amendment of 40-2319 adds obstruction of a public rights-of-way to the statute.
     It also clarifies that gates are obstructions; if the encroachment prevents vehicle travel,
     the county or highway district shall immediately remove the obstruction. And also
     increases the fine from $50.00 to $750.00. 
          40-2320 only allows a public road to be gated "subject to overflow to an extent
     as to remove the fences," Idaho Transportation Departments administrative rule (IDAPA
     39.03.47) further defines that overflow as water. During mileage certification if a gate is
     encountered, the mileage beyond the gate is not inventoried, it is not included in the
     allocation of funds from the Highway Distribution Account. Under the current statute and
     rules when counties and highway districts use gates to control public travel on specific
     sections of their highway system for common issues related to safety, maintenance,
     environment, or game management, they suffer a loss of funds. Repeal of this statue will
     allow counties and highway districts to fully manage their highway systems. 
     
                           
                     FISCAL NOTE
     
     There is no impact to the General Fund. 
     
               CONTACT:  Byron Keely, Local Highway Technical Assistance Council
                344-0565 
     
                                                                 STATEMENT OF PURPOSE/ FISCAL NOTE                             S 1408